999 F.3d 571
8th Cir.2021Background
- Ten African‑American University of Minnesota football players (the "Does") were accused by a student (Jane Doe) of sexual assault after an encounter in 2016; Minneapolis police declined criminal charges.
- University EOAA investigator Tina Marisam, who previously investigated football players and believed they had covered up misconduct, conducted an EOAA investigation that relied on Jane’s multiple interviews and led to a report recommending expulsions/suspensions for several players.
- University President Kaler ordered team suspensions, made public statements about the case, and the team briefly boycotted a bowl game; the Student Sexual Misconduct Subcommittee (SSMS) later found five players responsible and cleared or reversed findings for others.
- The Does sued the University, Kaler, and Marisam asserting Title IX sex discrimination and retaliation, Title VI and §1983 equal protection race discrimination, procedural due process, and state law contract/negligence claims.
- The district court dismissed all claims; the Eighth Circuit affirmed dismissal of all claims except it reversed as to Title IX discrimination (sex‑based) claims and remanded those claims for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Title IX (discrimination) — did University discipline the Does because they are male? | Alleged investigator bias, historical institutional pressure (prior OCR scrutiny, campus outcry, "Dear Colleague"), dubious investigative practices and public statements pressured decisions against male athletes. | University argued allegations were insufficient to plausibly show sex‑based discrimination; public pressure and victim‑favoring bias do not establish discrimination against males. | Reversed dismissal — complaint plausibly alleged discrimination on basis of sex when viewed in totality. |
| Title IX (retaliation) — did University retaliate when Does sought SSMS hearings? | Requesting a hearing and contesting findings constituted protected activity; subsequent public statements and hearing actions were retaliatory. | A request for a hearing is not a complaint of sex discrimination; alleged statements/actions were not plausibly adverse or causally retaliatory. | Affirmed dismissal — retaliation claims not plausibly pleaded. |
| Race discrimination (Title VI and §1983 equal protection) — were Does treated worse because of race? | University treated white employees and non‑black persons more favorably in sexual misconduct matters; disparate treatment of white individuals shown by past incidents and alleged failures to investigate. | Alleged comparators (employees, complainants, an uncertain white player) are not similarly situated to students accused of sexual assault; pleading lacks specific similarly situated comparators. | Affirmed dismissal — plaintiffs failed to plausibly plead similarly situated comparators or purposeful race discrimination. |
| Procedural due process — were pre‑ or post‑hearing process rights violated; exhaustion of state remedies? | Pre‑hearing suspensions, investigatory notice and reputation‑harm deprived property/liberty interests; some harms occurred predeprivation so exhaustion unnecessary. | Post‑hearing claims (for those found responsible) must exhaust state remedies (certiorari to state court); pre‑hearing allegations lack specifics to show a denial of meaningful process. | Affirmed dismissal — post‑hearing claims barred for failure to exhaust; pre‑hearing claims inadequately pleaded. |
| State law claims / Eleventh Amendment — can Does sue University in federal court for contract/negligence? | (Plaintiffs urged) university or athletics dept. not immune or could be sued via Ex parte Young against officials. | University is an arm of the State of Minnesota with Eleventh Amendment immunity; Does did not preserve or could not obtain Ex parte Young relief for damages. | Affirmed dismissal — Eleventh Amendment bars those state law claims; proposed amendments would be futile. |
Key Cases Cited
- Univ. of Ark.-Fayetteville v. Doe, 974 F.3d 858 (8th Cir. 2020) (adopted simplified Title IX pleading approach — allege discipline "because he is a male")
- Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (U.S. 1998) (recognition of private Title IX action)
- Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (U.S. 2005) (retaliation for complaining of sex discrimination actionable under Title IX)
- Doe v. Purdue Univ., 928 F.3d 652 (7th Cir. 2019) (discussing pleading standards and effects of the "Dear Colleague" guidance)
- Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016) (public criticism of prior failures can support inference of bias against accused male athletes)
- Schwake v. Ariz. Bd. of Regents, 967 F.3d 940 (9th Cir. 2020) (contextual external pressure plus specific procedural facts can make Title IX discrimination plausible)
- Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) (Dear Colleague letter provides backdrop that may support inference of institutional bias)
- Goss v. Lopez, 419 U.S. 565 (U.S. 1975) (due process requirements for student suspensions)
- Mathews v. Eldridge, 424 F.3d 319 (U.S. 1976) (balancing test for what process is due)
- Treleven v. Univ. of Minn., 73 F.3d 816 (8th Cir. 1996) (Eleventh Amendment immunity of state university)